was probably lying. The Judge had characterized his testimony as "generally unsatisfactory and unconvincing." The amounts in question were small, even by a clerk's standard, and the issue was of little significance, a $15 watch repair. Nonetheless, in the way we worked in his office, it was my job to go over the opinion and make sure every "i" was dotted and every "t" was crossed.

I did so. I signed off, the opinion was released. And about an hour later, one of my fellow clerks came moseying down the hall to tell me that the throwaway footnote on the watch repair misstated the law. The footnote said that even if the damage to the watch was a casualty loss, it could not be deducted because when added to another loss that the taxpayer had claimed, a $60 loss, the two together only added up to $75 and there was a $100 threshold, and unless you exceeded the $100 threshold, you couldn't deduct a casualty loss, you added up the losses to figure out if you were over the $100 threshold.

The problem was that under the statute, when testing the $100 threshold, each loss stands alone. You do not add them. Our footnote said you added them. It was wrong. It was my job to tell the Judge. I did so.

If looks were lethal, I was roadkill. He was some kind of mad, and I was some kind of embarrassed. It was my job to make sure every detail was correct. He had relied on me. I had failed. He did not have to say a word. The lessons were clear.

For Judge Tannenwald, there were no schmoes in Brooklyn. These taxpayers from Brooklyn were entitled to the same quality of treatment from the Court as were the most sophisticated taxpayers with the most complex problems. The quality of the judicial product coming from Judge Tannenwald's chambers was to be the same regardless of the identity of the taxpayer, and if something was worth doing, it was worth doing right and that included every, every detail. I have never forgotten.

For many of us, Ted was the master builder. When we came to him, there was a foundation. He put his scaffold up around us and started building. For the rest of his life and ours, he kept adding on, always keeping the support in place. Now that scaffold is down, but we stand taller and stronger for his having been there.

CHIEF JUDGE COHEN: Thank you.

Judge Halpern.

JUDGE HALPERN: At the risk that it sounds cliched, Judge Tannenwald was like a father to me. Like a father, he influenced my development before I came to know him. I have distinct memories from law school of the clarity and persuasiveness of his opinions. I almost clerked for him on the recommendation of Professor Wolfman. I met him in person through McGee Grigsby and Fred Goldberg and we soon came to be friends. I relied on him for advice and counsel, and Nancy and I called upon him to marry us and to swear me in as a Judge. I brought him my first opinion to read before I submitted it to the Chief Judge. As with my natural father, there were misunderstandings. It took me a while to learn that his describing my analysis as "Talmudic" was not praise. [Laughter.] We lunched together regularly with Marty Ginsburg, an earlier protege. I loved those lunches, as I believe did Judge Tannenwald and Marty. I once relayed to him my wife Nancy's question: "Who gets to talk first?" His response was: "We all do!"

In preparing for this address, I thought back to those opinions of Judge Tannenwald that so influenced me in law school. Since I no longer have those materials, I decided to inquire among law professors who teach tax what cases of Judge Tannenwald's they found most useful or influential. The request was fruitful, and I would like to share with you some of the cases and responses that were mentioned to me.

Judge Tannenwald had advice for lawyers. In Buffalo Tool & Die Manufacturing Co. v. Commissioner [74 T.C. 441 (1980)], Judge Tannenwald cautioned against extremism. His model was valuation, where the parties often stake out widely divergent positions, relying on their belief that, at worst, the Court will take a middle-of-the-road approach. The risk, he pointed out, was that the Court might find one party's position so outrageous that it is rejected in total. He suggested that, if a compromise is the expected result, the efficient solution is for the parties to reach that compromise, thus saving the costs of a trial and increasing the expected return for both sides.

A recurring strain running through Judge Tannenwald's opinions is common sense.

In Diaz v. Commissioner [58 T.C. 560 (1972)], Judge Tannenwald was faced with discerning truth from oral testimony, a task not unknown to laypersons, parents in particular. The question was whether the petitioner or his uncle, Jose, had purchased certain winning lottery tickets. Jose was not a U.S. taxpayer; the petitioner was. The petitioner's witnesses, principally family members, had an interest in the outcome of the case. Nevertheless, Judge Tannenwald found that Jose, the uncle, had purchased the winning tickets. Here is the essence of his finding:

To be sure, the story unfolded principally through the testimony of petitioner, Jose, and other members of the family, all of whom ultimately benefited from that wealth and concededly had an interest in the outcome of this case. But the fact of the matter is that, despite some confusion, there was a consistent thread to their testimony which supports the conclusion that petitioner's uncle owned the winning tickets. Beyond this, the testimony of petitioner's 86-year-old grandmother, who was also Jose's mother, was most convincing. Obviously closer than most to her Maker and face-to-face with her priest in the courtroom, she completely corroborated the essential elements of the testimony of petitioner and his uncle (her son) testimony which she had not heard because witnesses were excluded from the courtroom.

Although I think that it would be correct to characterize that decision as wise, I think that Judge Tannenwald liked the result, which he confirmed to me, because it evidenced com

mon sense.

Zarin v. Commissioner [92 T.C. 1084 (1989), revd. 916 F.2d 110 (3d Cir. 1990)] is a case that reminds me of the story of the elephant and the blind men. Each sees it differently depending on the part he touched. In Zarin, the question was whether a compulsive gambler had income from discharge of indebtedness when he settled his unenforceable gambling debts for less than their face amounts. There are four Tax Court opinions and two Court of Appeals opinions. Judge Tannenwald dissented from the majority's opinion that the gambler realized income. His dissent is informed by his disbelief that the petitioner obtained pleasure from gambling and losing: "The concept that petitioner received his money's worth from the enjoyment of using the chips (thus equating the pleasure of gambling with increase in wealth) produces the incongruous result that the more a gambler loses, the

greater his pleasure and the larger his increase in wealth." [Laughter.]

JUDGE HALPERN: Although I do not think that Judge Tannenwald ever entered into the public debate over the "plain meaning" interpretation of statutes, his opinions evidence an admirably balanced approach, and, as my professors inform me, provide some wonderful examples to teach principles of statutory construction. Compare Prophit v. Commissioner [57 T.C. 507, 512 (1972) (Tannenwald, J. dissenting), affd. 470 F.2d 1370 (5th Cir. 1973)], Beyer v. Commissioner [92 T.C. 1304 (1989), revd. 916 F.2d 153 (4th Cir. 1990)], and Lenz v. Commissioner [101 T.C. 260, 271 (1993) (Tannenwald, J., dissenting)]. In Prophit, dealing with the allocation of the dependency exemption between divorced parents, the statute clearly expressed Congress' will that unless the noncustodial parent contributed a certain minimum dollar amount, the custodial parent was deemed to have contributed over one-half of the dependent's support. The statute left no leeway for a case, such as at hand, where the custodial parent contributed nothing, a social agency and third parties contributed some, and the petitioner contributed the majority. Judge Tannenwald would have no truck with the majority's invocation of the Apostle Paul: "Not of the letter, but of the spirit.” To him, the statute was clear. Judge Tannenwald was not blind to the spirit of the law, however, as evidenced by his opinions in Beyer and Lenz. Both cases deal with the same issue of statutory construction, the meaning of the section 163(d) limitation on the deduction of investment interest. Judge Tannenwald was reversed by the Court of Appeals for the Fourth Circuit in the first case and overruled by the Tax Court in the second case. Nevertheless, in Lenz, he insisted: "I think that the statutory language at issue herein is sufficiently ambiguous to permit interpretative analysis so as to give effect to the intent of Congress and the policy objective of section 163(d) as a whole." I agreed with him. More importantly, Judge Tannenwald demonstrated his paramount concern to interpret the Code to most faithfully accomplish Congress' pur

pose.

Finally, there is Judge Tannenwald's role as a clarifier and dispeller of myths, and that brings me to Llorente v. Commissioner [74 T.C. 260, 272 (1980) (Tannenwald, J., concurring)],

my favorite Judge Tannenwald opinion. He and I shared the view that much mischief is caused by the notion that a socalled "presumption of correctness" attaches to the Commissioner's determination of a deficiency. In Llorente, Judge Tannenwald tried to disabuse readers of the notion that there is any presumption of correctness beyond that implied by the allocation to them of the burden of proof. Of course, I shared Judge Tannenwald's view only because he taught it to me.

In looking over the cases that I have cited, I note that there are many concurring and dissenting opinions. Maybe there is more of the father in the son than I realized. I will miss Ted Tannenwald.

CHIEF JUDGE COHEN: Thank you.

When I was sworn in as a Tax Court Judge, then Chief Judge Tannenwald sat here and administered the oath, and even before that, and certainly from that moment, I was the beneficiary of continuous comfort and advice that I will never forget.

He taught me to have confidence in my positions while respecting the contrary views of others. His fairness to all, however, is, to me, demonstrated in one of the stories that he told on himself, and that was about the time he was trying a case and he began to question the expert witness that was on the stand. After a while, one of counsel objected to Judge Tannenwald's questions. Judge Tannenwald said in surprise, "You are objecting to my question?" And the lawyer said, “Well, yes, Your Honor. If my opponent who offered this witness asked that question, I could object on the ground that it wasn't in his written expert report. When you ask that question, I am prejudiced by that." So Judge Tannenwald sustained the objection.

[Laughter.]

CHIEF JUDGE COHEN: Actually, Judge Garbis reminded me of another story about Judge Tannenwald, and his humility is shown by this. This is another story he told on himself, which was that he was trying a case and asking a lot of questions, and one of counsel said, "Your Honor, if you are going to try the case for me, do it well. Please don't lose it for me." [Laughter.]